https://doi.org/10.37955/cs.v7i3.317
Received June 24, 2022 / Approved October, 13 2021 Pages: 13-23
eISSN: 2600-5743
Elimination of the ministry of
justice and its impact on the
penitentiary crisis in Ecuador in
2019 to 2022
Eliminación del ministerio de justicia y su incidencia en
la crisis penitenciaria del ecuador en los años 2019 a 2022
Dalton Mauricio Castillo Vásquez
Ms.c Universidad Internacional del Ecuador sede Loja
https://orcid.org/0000-0001-7249-7923 dacastillova@uide.edu.ec
Maria Del Carmen Montero Montaño
MSc. Universidad Internacional del Ecuador sede Loja
https://orcid.org/0009-0008-3281-0442, mamonterosm@uide.edu.ec
ABSTRACT
Throughout Ecuador's history, the penitentiary system has not been
seen as a necessity when reforming public policies. Some
rehabilitation and social reinsertion measures have been discussed or
addressed, such as socio-educational measures and even technical
careers that help the social reinsertion of persons deprived of liberty.
The penitentiary system has been under the eye of the hurricane and
criticism, since it did not comply with the minimum standards
required by national and international organizations such as the Inter-
American Commission on Human Rights and Human Rights Watch.
International treaties that according to the Constitution of the
Republic of Ecuador have a parallel hierarchy to it and therefore are
binding for our internal legal system.
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RESUMEN
A lo largo de la historia del Ecuador, el sistema penitenciario no ha
sido visto como una necesidad al momento de reformar las políticas
públicas. Algunas medidas de rehabilitación y reinserción social sí han
sido debatidas o tratadas, como por ejemplo medidas socioeducativas
e incluso carreras técnicas que ayuden a la reinserción social de las
personas privadas de libertad. El sistema penitenciario ha estado bajo
el ojo del huracán y de la crítica, ya que este no cumplía con los
estándares mínimos que organismos nacionales e internacionales tales
como la Comisión Interamericana de Derechos Humanos y Human
Rights Watch exigían. Tratados internacionales que según la
Constitución de la República del Ecuador tienen una jerarquía paralela
a la misma y por ende son vinculantes para nuestro ordenamiento
jurídico interno.
Keywords / Palabras clave
ministry, justice, rehabilitation, rehabilitation, social reintegration,
disposal
ministerio, justicia, rehabilitación, reinserción social, eliminación
Introduction
The constant uncertainty in which we live due to the lack of security
that our country is currently experiencing has become a topic of debate
within the communication and political agenda (UNITED NATIONS
NEWS, 2022). Every day without exception, the security aspect is
something that concerns us all as a country. Undoubtedly, the
situation of insecurity is often propitiated from prisons that function
in many cases as a kind of "criminal operation centers" from where
materially originate many antisocial acts that occur in the cities. This
aspect, linked to the crisis affecting rehabilitation centers due to
overcrowding and lack of socio-educational measures, worsens with
the passage of time and simulates a bomb with a countdown that
seems to explode every time an attempt is made to take action to
control it. The prison issue is important because as a State we have
been pointed out at the international level by multiple watchdogs in
terms of Human Rights and social rehabilitation such as: Amnesty
International, United Nations, Inter-American Commission on
Human Rights who maintain that Ecuador is a territory that does not
provide the necessary guarantees for the rehabilitation and social
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reintegration of persons deprived of liberty who are within the prison
system. (UNITED NATIONS, 2021).
Materials and Methods
The materials and methods used for this research work were
qualitative in nature. A study was made based on the penitentiary
crises in which our country has been involved, in relation to the public
policies and responsibilities that the Ministry of Justice, Human
Rights and Worship had until a few years ago in our country. Sources
such as doctrine, jurisprudence, press releases and bulletins of the
different State secretariats assigned to the system of social
rehabilitation of persons deprived of liberty were used.
Results
The discussion of this scientific article is subsumed to the suppression
of the Ministry of Justice, Human Rights and Worship as a State
institution in Ecuador, and how the elimination of this State entity
became one of the detonating factors of the penitentiary reality that is
currently experienced in our country. At the conclusion of this
scientific article we will try to determine whether or not the
reincorporation of a ministry similar to this one can help to control the
current penitentiary crisis and also to propose possible viable
solutions to this problem.
Background analysis regarding the Ministry of Justice, Human Rights
and Worship.
In 2007, the need arose for the National Government to implement
public policies related to the rehabilitation and social reintegration of
persons deprived of liberty. In those years, Ecuador, a country
composed of 22 provinces, had 35 prisons, all of which, without
exception, were built more than 40 years ago. Structurally, these
facilities did not comply with the purposes established by the United
Nations and Human Rights Watch for the fulfillment of the purposes
of the prison system, which are those of deterring and rehabilitating a
person who commits an anti-juridical conduct. (FLACSO, 2016)
(UNITED NATIONS, 2021).
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Thus, with the enactment of decree number 748-2007 issued by the
former President of the Republic Rafael Correa Delgado, the creation
of the Ministry of Justice and Human Rights was established, which
among its functions was to establish and implement public policies
around the rehabilitation and social reintegration of persons deprived
of liberty. This was based on the imperative need to regain control of
rehabilitation centers with respect to internal security, in addition to
the rehabilitation and social reinsertion of those who had committed a
crime (PRESIDENCIADELECUADOR, 2007).
In 2007, when this Ministry was created, Ecuador had a prison
population of approximately 12,000 inmates who were serving their
sentences in centers with dilapidated infrastructures that did not have
the minimum facilities required for the vital subsistence of a human
being (PROAÑO, 2016). The average space that a person deprived of
liberty had in a social rehabilitation center was only 12 m2 per person,
which translates into overcrowding. (SOCIEDAD.ORG, 2022).
It was understood that simply having facilities that would allow
sentenced persons to serve their sentences was not enough, as the
State would only fulfill half of the equation and rehabilitation and
social reinsertion would be left aside. This is why, among other
functions that the new Ministry of Justice and Human Rights was
entrusted with by decree, was to implement public policies in favor of
the social rehabilitation of persons deprived of liberty.
(PRESIDENCIADELECUADOR, 2007).
Undoubtedly, the establishment of a Ministry to contribute to the
fulfillment of the goals of a social rehabilitation system was a great
achievement for the reality of the prison system in our country. Until
then, Ecuador had no institutional framework, programs or projects in
the area of reinsertion and social rehabilitation that would allow it to
achieve tangible results in the short, medium and long term.
Undoubtedly, the development and implementation of public policies
on social rehabilitation was and remains a complex issue that we must
face as a country from all functions of the State.
It was then necessary to set clear lines of compliance and concrete
objectives to be met under certain conditions and in strict observance
of both national and international human rights standards ratified in
Ecuador. (FLACSO, 2016) One of the strongest and most important
reasons why the Ministry of Justice and Human Rights was created is
that Ecuador, with the inadequacy of the social rehabilitation system,
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did not meet minimum requirements for protection and monitoring of
the minimum guarantees of persons deprived of liberty. (IACHR,
2022).
Public Policies Implemented by the Ministry of Justice, Human Rights
and Worship.
Undoubtedly, the main project of the Ministry of Justice, Human
Rights and Worship was to improve the country's social rehabilitation
system. Since the penitentiary rehabilitation system required the help
and intervention of the National Police and the Judicial Function, the
Ministry needed to issue all the necessary policies so that both the
police and the judicial function would work together to improve the
rehabilitation system in an integral manner. Likewise, the Ministry by
regulating the policies of that institution had to manage and make
known to the executive the budgetary needs required to improve the
penitentiary system (FLACSO, 2016).
The policies issued by this Ministry were essential to improve the
social rehabilitation system, coordinating with other ministries such
as education and public health so that their projects would become
inputs for the social rehabilitation process of persons deprived of
liberty, a reality that is not present today because it is not an entity
with equal hierarchy. This ministry provided concrete follow-up on the
issues of reparations ordered in the sentence: (a) Compensation; (b)
Restitution; (c) Rehabilitation; (d) Satisfaction; and (e) Guarantee of
non-repetition. (IACHR, 2021).
This follow-up culminated in a binding report that was added to the
cases and served as an input to determine whether the sentence had
been served or not. These reports were useful for the judge in the case
to have a much clearer input when making a determination regarding
compliance with the sentence as well as legal benefits for the
defendants. (SOCIEDAD.ORG, 2022)
The Ministry of Justice, Human Rights and Worship was also the
coordinating institution for other agendas of vital importance in
Human Rights issues. This State institution directed the councils for
equality and the eradication of violence against vulnerable groups such
as the LGBTI community and the female population. With its
suppression, these two councils, which sought to eradicate issues of
violence and thus contribute to the establishment of human rights
policies, were left in the hands of other State agencies (IACHR, 2021).
(IACHR, 2021).
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The structure of the Ministry of Justice, Human Rights and Worship
was organized by zones and provinces whose dependencies functioned
in relation to other institutions that make up the National Government
of Ecuador. This ministry operated with a legal structure that allowed
it to develop complex policies and activities. Today, the National
Service for the Comprehensive Care of Adults Deprived of their Liberty
and Adolescent Offenders cannot carry out complex coordination
activities since it does not have the status of a ministry with broad
functions, but is simply classified as an institution that only provides a
service to the country. (IACHR, 2022)
The functions of this service today must be subordinated to the
decisions established by the Ministry of the Interior. This ministry
must approve or not any type of project that is required to be
established in relation to the social rehabilitation system. (IACHR,
2022) Its zonal and provincial operation recognized it autonomy to
make decisions regarding the hiring of personnel and staffing and
implementation of the different needs in the daily recurrence of its
activities, according to the needs that each zone or each province has
as the case may be. (MINISTRY OF JUSTICE, 2016)
Nowadays, all these necessary implementations for the fulfillment of
the rehabilitation and social reintegration of persons deprived of
liberty must be made by the National System of Integral Care for adults
deprived of liberty and adolescent offenders. Currently, these
decisions on hiring staff and provision of materials is also
subordinated to the will of the Ministry of the Interior, which is the
one that coordinates and regulates the SNAI. (SNAI, 2013)
The Ministry of Justice, while it existed for approximately 11 years, had
the power to provide the necessary supplies for the different
workshops offered to persons deprived of liberty as socio-educational
measures. At this point it should be noted that thousands of persons
deprived of liberty and especially adolescent offenders in correctional
centers nationwide were beneficiaries of these socio-educational
courses and workshops. (DEFENSORIA PUBLICA, 2021).
According to data from the Human Rights Observatory, several of the
socio-educational policies that were implemented with the Ministry of
Justice in the country's prisons, currently no longer function, do not
exist or are carried out in a precarious manner, since the abandonment
of public policies included the fact that the places and entities
responsible for providing these socio-educational measures do so
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without the necessary materials or inputs for their realization (IACHR,
2022). (IACHR, 2022) It is the right time then to analyze whether or
not there are other organizations similar to the extinct Ministry of
Justice, Human Rights and Worship at the regional level, which work
fulfilling the functions that this former State agency had. We will begin
with our neighboring countries such as Colombia and Peru; in the case
of Colombia, the coordinating institution in all areas of rehabilitation
and social reinsertion is the Colombian Ministry of Justice and Law
(MINISTRY OF JUSTICE AND LAW, 2023).
This ministry has an institution that is responsible for the control and
operation of the entire prison system in that country: The National
Penitentiary and Prison Institute (INPEC). This institution is in charge
of establishing and implementing the public policies established by the
Ministry of Justice and Law of Colombia within all the social
rehabilitation systems of this country. On the other hand, Peru has a
ministry called Ministry of Justice and Human Rights, which has
among other functions to establish guidelines and public policies for
the protection of human rights, civil integrity and the integrity of the
State. This institution, as in the Colombian case, is in charge of several
institutions, among them the National Penitentiary Institute (INPE)
(JUSTICIA, 2023). The INPE is in charge of making State security
policies viable, since this institution is responsible for maintaining
social order and protecting the State, in accordance with the
objectives, functions and missions of the Peruvian Ministry of Justice
and Human Rights. With these examples we can see how at the
regional level some countries have similar structures for managing
rehabilitation and social reinsertion systems.
Taking as a reference the aforementioned institutions in Colombia and
Peru we can note a great similarity, first a ministry or secretary of state
with a higher rank, the Ministry of Justice and Human Rights in Peru
and the Ministry of Justice and Law in Colombia. These ministerial
institutions are in turn attached to two institutions established for
specific purposes of rehabilitation and social reintegration, INPE and
INPEC respectively. This similarity was also shared by Ecuador until
the elimination of the Ministry of Justice, Human Rights and Worship
in 2018.
One of the factors to be analyzed is the non-existence of an entity that
articulates and makes effective all public policies related to
rehabilitation and social reinsertion. The doctrine in many cases tells
us that social rehabilitation, being a matter of coercion by the State,
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and social reinsertion as a duty inherent to it, should be taken as a
public policy of all powers and not only at the governmental level.
Therefore, in the absence of a ministry that can relate and plan with
different institutions that make up the Ecuadorian state in favor of
persons deprived of liberty and victims of various crimes, the SNAI is
insufficient to meet all the needs that these responsibilities of
rehabilitation and social reintegration generate. It is understood that,
in order to have effective rehabilitation and social reinsertion policies,
these should be as broad as possible, thus ensuring that persons
deprived of liberty who have served a sentence of conviction do not
reoffend. This non-recidivism can only be achieved through the
establishment of concrete objectives and public policies that in one
way or another contribute to their fulfillment.
Conclusions
Based on all the analysis carried out within this document, as well as
all the ideas developed, we can conclude that:
It is necessary the existence of a coordinating entity much more
complex than an institution catalogued as a system that can strengthen
the institutional framework and allow the fulfillment of the objectives
of rehabilitation and social reinsertion of persons deprived of liberty
in the entire penitentiary and correctional system of Ecuador with
strict observance of the legislation on Human Rights.
The abandonment of public policies within the social rehabilitation
system of Ecuador, generates among other things the little or no
presence of the State, within the rehabilitation and correctional
centers at national level, which in one way or another generates that
the State loses the monopolization of control of these places
throughout the national territory, which in turn triggers the
unfortunate events that are of national significance. Social
rehabilitation as a path towards the reinsertion of persons deprived of
liberty can only be established if there are public policies and objective
technical decisions necessary for the fulfillment of short, medium and
long term goals, which requires a strong and much more complex
institutional framework than the current one.
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